AMC Indemnification
Appraisers signing off catch-all certification…
When we crafted the language in the AMC Act back in 2011-2012, we followed what most every other state included insofar as indemnification was concerned.
(225 ILCS 459/165) Sec. 165. Prohibited activities.
(8)Â Requiring an appraiser to sign any sort of indemnification agreement that would require the appraiser to defend and hold harmless the appraisal management company or any of its agents, employees, or independent contractors for any liability, damage, losses, or claims arising out of the services performed by the appraisal management company or its agents, employees, or independent contractors and not the services performed by the appraiser.
Everyone seemed to understand what this meant.
Appraisers and AMCs correctly understood it to mean that an appraiser could not be required to take a liability hit for things that the AMC might do, that was beyond the control of the appraiser. Easy. Right? Most indemnification clauses in AMC contracts go something like this:
“Vendor (appraiser) will indemnify and defend the AMC, its subsidiaries, and affiliates and their respective officers, employees and directors, and hold them harmless from any and all claims, demands, liabilities, losses, costs and damages, including without limitation, court costs and reasonable attorney’s fees for: personal omissions, injury, property damage…arising out of the Vendor’s personal or personnel acts…”
The key to this language is holding the AMC harmless as to what the appraiser or the appraiser’s employee does. Meaning…if you knock over the homeowner’s priceless flower vase on an inspection…that’s on you. That’s fair. However, I still see appraisers signing off on similar catch-all certifications:
“I will adhere to the Dodd-Frank Act, Appraiser Independence Requirements (AIR), Uniform Standards of Professional Appraisal Practice and/or FNMA, FHLMC, FHA Appraisal Standards, existing on the effective date of the appraisal, as applicable. I will comply with all federal, state and local laws and regulations.”
First, the Dodd-Frank Act (DFA) is not another burden for appraisers. It is the responsibility of the AMC to comply; not the appraiser. Next, AIR is meant for AMC compliance; again, not for the appraiser.
There is absolutely no reason for AMCs to offer this in an attempt to offload their singular responsibilities onto an appraiser with this language, or anything like it. If AMCs want to attach a certification that they are in compliance with AIR…then they are free to do so. This is not something that an appraiser signs. Ever.
Next, AMCs are already under the singular obligation, by every state, to employ or contract with appraisers who adhere to USPAP.
In Illinois, AMCs, as a condition of registration must certify to four points.
(225 ILCS 459/40) Sec. 40. Qualifications for registration.
(a) The Department may issue a certification of registration to practice under this Act to any applicant who applies to the Department on forms provided by the Department, pays the required
non-refundable fee, and who provides the following:(6) a certification that the applicant will utilize Illinois licensed appraisers to provide appraisal services within the State of Illinois;
(7) a certification that the applicant has a system in place utilizing a licensed Illinois appraiser to review the work of all employed and independent appraisers that are performing real estate appraisal services in Illinois for the appraisal management company on a periodic basis, except for a quality control review, to verify that the real estate appraisal assignments are being conducted in accordance with USPAP;
(8) a certification that the applicant maintains a detailed record of each service request that it receives and the independent appraiser that performs the real estate appraisal services for the appraisal management company;
(9) a certification that the employees of the appraisal management company working on behalf of the appraisal management company directly involved in providing appraisal management services, will be appropriately trained and familiar with the appraisal process to completely provide appraisal management services;
None of these can be waived or dumped on their panel in the form of an indemnification, which is exactly what that DFA/AIR appraiser certification language is trying to do.
AMCs need to remove that language, immediately. If not, they are in violation of Section 165.
To assure that AMCs are in compliance with this along with the four required certifications, we will be conducting an audit of their engagements and contracts beginning in October.
By Brian Weaver, Coordinator Editor of IllinoisAppraiser, Appraisal Management Company Coordinator for the Illinois Department of Financial and Professional Regulation (IDFPR)
Source Illinois Appraiser Newsletters – Volume 9, Issue 2 – October 2016
- Hybrid Assignments, the Consequences - February 7, 2019
- Bankers Concerned About Appraisals - October 18, 2017
- Third Party Blues - July 19, 2017
The major software providers that even the in house lenders utilize, all offer the AIR as a standard inclusion. There is hardly a single avenue for any mortgage lending origination work that will not force the AIR compliance statement either during or immediately after. Only some sort of affirmation through legal entities like the asc or state or federal will stop the air train now. Brian, the audit should not be limited to amc’s, since all in house distribution entities I know of use the same language. If mortgage brokers are regulated, they deserve an equally detailed audit regarding this common practice. This is an automated inclusion for just about every in house and amc based distribution platform that I know of, and trust me, I’ve worked with many of them. Air inclusion is practically mandatory for every ams service out there. (ams = appraisal management service software)
“I certify that I did not; bribe myself, intimidate myself, promise myself future compensation based on predetermined results.” I will certify that I’m insane for having participated in this industry. Soon there will be more vendor managers then appraisal vendors themselves. Also looking at the bread and butter work going south as fnma approves only risky loan requests needing appraisals? The fee just went up again.
Also, here we go again, more CO rules and/or language changes. This never ends. via; appraisers meetings at dora upcoming email.
Colorado Board of Real Estate Appraisers Meeting
As everyone knows there are several camps in this appraisal business. Many licensed/certified appraisers work for government agencies, lenders, commercial/industrial, Realtors, etc. Approximately 31% of the current appraisers are preparing residential appraisals. Of this 31% many of us would rather shine shoes at the bus station than work for any AMC. Those working for AMCs deserve everything they get! Why not accept unlimited liability? if the liability becomes too great, the fees too low, the turn times too fast, etc…Who knows…Maybe they will stop working with AMCs? How can any of us respect our fellow appraisers that keep these PARASITES earning big bucks feeding off of our industry. Stop supporting these thieves! I understand that no one is listening! Thank GOD I will be retiring soon!
There is no need for any of us to feel sorry for our fellow appraises who support the AMCs…the various appraisal organizations, newsletters, coaches, etc. and etc. Why should the rest of us care? If any appraiser wants to work for chump change and take a part of that change to give to an appraisal organization that uses the money to KICK their ass….I mean…why do I care? Â You have to admit that it is funny! Maybe we need to go back to the time when there was no appraiser license or certification. I was just as busy then as now and more respected! Pull the plug on license and certification….it worked for a long time…this crap today does not seem to work!
If we are going to make a profession out of this cluster that we are in now…we need to take control of our profession…Tell FANNIE, FRIDDIE, FHA, VA, Etc… that it is US that will create the forms…we will provide the rules….all appraisers will follow the ASC or they will no longer be appraisers. Lets take back our profession…lets make the rules….others can go to hell! Just my silly opinion! Again…just my opinion but if you are earning money for a parasitic AMC you should find another career as you are the problem! Do not go away mad…just go the hell away!
If they released the license requirement every single amc in the country would immediately morph into a sweat shop. That’s no longer a viable alternative. This industry needs to attract skilled laborers like electricians and construction workers and general contractors. These office cubicle hooligans think real property can be depicted in a line graph. If a person cannot step up to a house and specifically name at least 1,000 individual home components and explain what they’re there for and why they’re present, also detailing a reasonable over all cumulative estimate of their remaining age life and durability potential, well, that’s the deal with appraising real property. You need to know what real property is in the first place. It’s not a line graph. It’s not the bottom line for income. It’s not a clever volume based based business plan. Only a damned fool would judge the competency of the appraiser based on how fast he can type up a see addenda report. I’m telling you, the industry needs people whom can build homes, not people whom transitioned from corporate settings. Rendering most amc business models null and void in terms of their applicable contribution towards more meaningful process.
To Baggins….I respect the fact that you seem to be interested in the public good. I have no problem with that at all. I look back to the days I was working in this business before appraiser license and before Fannie Mae, etc. Honestly I had zero idea how the system worked. If only I could go back to those days….I would have many million dollars in the bank. I remember buying a house…calling my banker saying I needed to borrow XXX dollars. He said no problem, prepare an appraisal for me and we will close as soon as you are ready. In the mean time, I found another buyer and sold said house before it was put into my name. The same day….title was transferred to me and transferred to the new buyer. I paid zero interest, etc.
This was the days where you paid cash for a house. Then with the title in your name you went to the bank and borrowed about 120% of what you paid for the house. Put the 20% in your pocket and had a 100% loan on the house that you rented for more than the payment. You did this over and over…..That was just the way it was done in the past. I have no problem going back to the good old days! Lets do this soon!